In Re Marriage of Erwin

840 N.E.2d 385
CourtIndiana Court of Appeals
DecidedJanuary 13, 2006
Docket84A05-0501-CV-53
StatusPublished
Cited by9 cases

This text of 840 N.E.2d 385 (In Re Marriage of Erwin) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Marriage of Erwin, 840 N.E.2d 385 (Ind. Ct. App. 2006).

Opinion

840 N.E.2d 385 (2006)

In re the MARRIAGE OF Katharine A. ERWIN and David K. Erwin
Katharine A. (Erwin) Seay, Appellant-Petitioner,
v.
David K. Erwin, Appellee-Respondent.

No. 84A05-0501-CV-53.

Court of Appeals of Indiana.

January 13, 2006.

*386 Robert D. Hepburn, Terre Haute, for Appellant.

Teri M. Lorenz, Hunt Hassler & Lorenz, LLP, Terre Haute, for Appellee.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Petitioner, Katharine A. Erwin Seay (Katharine), appeals the trial court's termination of spousal maintenance previously ordered to her as a result of her divorce from Appellee-Respondent, David K. Erwin (David).

We reverse.

ISSUE

Katharine presents one issue on appeal, which we restate as follows: Whether the trial court erred in granting David's Petition to Modify spousal maintenance by finding that a substantial change in circumstances has occurred since the dissolution decree was entered.

FACTS AND PROCEDURAL HISTORY

Katharine and David were married on May 18, 1984 and divorced on May 9, 2002. On May 9, 2002, the trial court entered, in part, the following findings of fact:

* * * * * *
5. [Katharine] is fifty-two (52) years of age and suffers from a bi-polar condition, for which she has received treatment, including counseling and medication, and will continue to require such counseling and medication in the future. She had previously been employed in the nursing profession, but in view of her bi-polar condition has not been so employed for a number of years.
6. According to the expert testimony, [Katharine], in the future, will no longer be able to practice her profession as a nurse, and her employability, in any position, will be at most sporadic, as she will experience exacerbations of her bi-polar condition on occasion. The stresses of employment make full-time work improbable for [Katharine] and she may be disabled to the extent of obtaining disability benefits.
7. Based upon Social Security records, [Katharine] during the course of the marriage earned $424,832 ... however, *387 for the last three (3) years of the marriage (1999-2001)[,] her income was $9,294.00, $2,814.00, $6,300.00, respectively. [Katharine's] future earnings will also be limited.
8. [David] is fifty (50) years of age and a tenured associate professor at Rose Hulman Institute of Technology.
9. Based upon Social Security records, [David] over the course of the marriage earned $872,671.00 (estimating his income for 2001 at $65,000.00). For the last three (3) years of the marriage (1999-2001)[,] his earnings were $66,048.00, $76,200.00, $65,000.00, respectively. [David] continues to be so employed, expects such income to continue, and anticipates that such income may increase substantially, should he be raised to the position of full professor.
10. [Katharine] will require significant medical and psychological care in the future, has no insurance program available to her through her employment and is likely uninsured at least to the extent of pre-existing conditions.
* * * * * *
29. Premised upon all the findings [herein], [Katharine] is physically or mentally incapacitated to the extent that her ability to support herself is materially [a]ffected.

(Appellant's Appendix, pp. 17-18, 21).

Then, on May 20, 2002, in a Nunc Pro Tunc Entry of Decree of Dissolution, the trial court, in part, ordered:

9. That [David] shall maintain and pay premiums for the continuation of his present health insurance plan covering [Katharine] through his employment, through the COBRA program for a period of thirty-six (36) months, provided however, that if [Katharine] shall be able to obtain comparable health insurance coverage through future employment during such period of time, [David's] obligation to maintain and pay such premiums shall terminate.
10. That [David] shall pay to [Katharine], maintenance in the amount of $700.00 per month, commencing on the first day of June, 2002, and on the first day of each month thereafter, for a period of eighty-four (84) months or until further Order of the Court. Provided however, that [Katharine] is ordered to apply for Social Security disability benefits, forthwith, upon the entry [of] this Decree of Dissolution, and on a periodic basis thereafter, and in the event that [Katharine] shall qualify for such benefits, [David's] maintenance obligation, as set forth herein, shall be reduced or illuminated [eliminated] to the extent that [Katharine] receives such benefits.

(Appellant's App. at 31-32).

On April 12, 2004, David filed a Petition to Modify, requesting reduction or termination of his spousal maintenance obligation to Katharine. On December 7, 2004, a hearing was held on the matter. As a result, on December 20, 2004, the trial court entered, in part, the following findings of fact and conclusions of law:

Findings of Fact

1. Since the parties' divorce on May 9, 2002, [Katharine] has been gainfully employed well more than she has been unemployed.
* * * * * *
4. [Katharine] lost her job at St. Vincent Clay Hospital at the end of May, 2004, because she was too slow in doing her "charting" and she was not able to remember procedures, after an *388 absence from the job, due to a reaction to medication.
5. [Katharine] is now employed at Elder Beerman, earning six dollars and seventy[-]five cents ($6.75) per hour and working thirty to thirty-five (30-35) hours per week.
6. [Katharine] is actively looking for a new job in nursing or, alternatively, seeking to obtain a second part-time job to supplement her income at Elder Beerman.
* * * * * *
8. [Katharine] has the ability to earn in excess of twenty dollars ($20) per hour, as evidenced by her employment with first[,] Ivy Tech[,] and secondly with St. Vincent Clay Hospital.
9. [Katharine] was required by the Court, under [its Decree of Dissolution] to apply for Social Security disability benefits upon the entry of the Final Decree and on a periodic basis thereafter. In response to the application which [Katharine] made, after the divorce, for Social Security disability benefits, the Administration found that she was not disabled under their rules, because, "we have determined that your condition is not severe enough to keep you from working" and "is treatable by medication, and you are currently stable." (January 16, 2003, Social Security Administration report)
10. While [Katharine] made a second application in 2004, it appears she applied for SSI and was turned down by the Administration, because she had earned (or received as maintenance payable by [David]) too much money in 2004 to be eligible.
11. [Katharine] prefers to be employed and does not wish to apply for or be eligible for Social Security disability benefits.
12. At no time, since the divorce, has [Katharine] applied for full-time employment.
13. [Katharine] believes that she can work in the nursing field, and hopes to obtain a nursing job in an area less stressful than a medical-surgical unit.

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Cite This Page — Counsel Stack

Bluebook (online)
840 N.E.2d 385, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-erwin-indctapp-2006.